Back
2026 Supreme(Online)(Mad) 7655
IN THE HIGH COURT OF JUDICATURE AT MADRAS
L. Victoria Gowri, J
Sulochana @ Brindha – Appellant
Versus
State Of Tamilnadu – Respondent
CRL OP(MD). No.404 of 2026|CRL MP(MD). No.399 of 2026
For the Appellants/Petitioners: K. M.Karunakaran
For the Respondents: S.Ravi
Change of counsel is not a valid ground for recalling witnesses under Section 311 Cr.P.C., particularly in POCSO cases where recalling a child victim may cause unnecessary trauma and where previous opportunities for cross-examination were ignored.
Headnote:(A) Criminal Procedure - Recall of Witnesses - Section 311 Cr.P.C. - Recall of witnesses cannot be granted at the whims and fancies of the defence, especially when sufficient opportunity was previously provided. (Para 7)
(B) POCSO Act - Protection of Victim - Recall of child victim - Recalling a child victim for repeated examinations can cause trauma and is avoidant to the ends of justice unless strong and valid reasons are presented. (Para 3, 7)
(C) Legal Representation - Change of Counsel - Change of vakalath or engagement of a new advocate is not a valid ground for recalling witnesses who were already available for cross-examination. (Para 5, 7)
Issues: Whether the change of counsel and the need for a fair trial justify the recall of witnesses, including a child victim, under Section 311 Cr.P.C.
| Table of Content |
|---|
| 1. petition to recall witnesses under section 311 cr.p.c. due to change of counsel. (Para 1 , 2 , 4) |
| 2. objection to recalling child victims and insufficiency of change of counsel as a ground. (Para 3 , 5) |
| 3. judicial standard for recalling witnesses and protection of victims from trauma. (Para 6 , 7) |
| 4. dismissal of petition based on lack of valid grounds for recall. (Para 8) |
PRAYER :-
To Call for the records and set aside order dated 21.11.2025 made in Crl MP No.2254/2025 in Spl SC No.37/2023 on the file of Learned Sessions Judge, Mahila Court, Tiruchirappalli and allow the above petition.
ORDER
This Criminal Original Petition is filed to call for the records and set aside order dated 21.11.2025 made in Crl MP No.2254/2025 in Spl SC No.37/2023 on the file of Learned Sessions Judge, Mahila Court, Tiruchirappalli and allow the above petition.
2. The learned counsel for the petitioner submitted that the petitioner is the first accused in Spl.S.C.No.37 of 2023, for the alleged offences punishable under Sections 366(A) of IPC, Section 3 and 4 read with Sections 16 and 17 of POCSO Act, before the learned Sessions Judge, Mahila Court, Tiruchirappalli. That the petitioner had filed an application in Crl.M.P.No.2254 of 2025, under Section 3 11 Cr.P.C., to recall P.W.1 to P.W.3 for cross examination on the side of the first accused. However, the learned trial Court had rejected the same and therefore the petitioner sought for indulgence of this Court for the ends of fair trial.
3. Mr.S.Ravi, learned Additional Public Prosecutor categorically contended that already the victim was examined twice, earlier at the instance of the second accused. It is a settled proposition of law in POCSO Act cases that the victim should not be time and again, called to appear before the court in the name of giving evidence and sought for dismissal of this case.
4. Learned counsel for the petitioner submitted that he had engaged a counsel before the trial Court, who had failed to cross examine the witnesses and therefore, he had engaged a new counsel who filed a petition under Section 311 of Cr.P.C., to recall PW1 to PW3 for cross examination.
5. Learned Additional Public Prosecutor, in reply, submitted that change of counsel is not a ground for allowing the recall petition.
6. Heard either sides and carefully perused the materials available on record.
7. A careful reading of the impugned order would make it clear that there is no infirmity in the same and the learned trial Court had dismissed the petitioner's application after observing as follows:
" 8. On perusal of records, it is noted that P.W.1 and P.W.2 were examined-in-chief on 14.09.2023. The PW3 was examined in chief on 04.08.2025. The said witnesses were not cross examined by the Petitioner / 2nd accused on the dte of Chief examination. Sufficient opportunity was given to the petitioner / 2nd accused to cross examine the witnesses on the day of chief examination. The petitioner / 2nd acused has not stated any reason for not cross examine the P.W.1 to P.W.3 at the time of chief examination. Even though the petitioner / 2nd accused counsel present at the time of chief examination of P.W.1 to P.W. 3, they fail to cross examine the PW1 to PW3. PW1 is the victim in this case, who is aged about 13 years. The victim cannot be traumatized again and again. P.W.2 is the mother of the victim and the PW3 is the father of the victim. Already the 2nd accused cross examined the P.W1 and PW2 on petition. At that time also this petitioner 2nd accused did not choose to cross examine the witnesses. This petitioner / 2nd accused kept silent for more than two years, now came forward with this petition. The learned cousnel for the petitioner / 2nd accused stated that he filed change of Vakalath for the petitioner/2nd accued so he wants to cross examine P.W1 to PW3. But no such grounds were raised by the petitioner / 2nd accused in this petition. Even then the change of counsel is not a valid ground to
